Dispatches from the 10th Crusade

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Kidnapping by Officials is OK if They Don't Know the Law

In the past I have tended to give police and law officials the benefit of the doubt in their using police powers to make arrest and such. I think I am going to have to retract that, or at least put up a huge caveat. And I now think that maybe bad reasoning, and bad perception of reality as expressed in legal decisions, is a fully satisfactory basis for removing judges from the bench. The 9th Circuit needs to have several judges removed from its ranks, and replaced with people who have a connection with reality.

The court ruled last September that telling a homeowner “let me in or I will take your kids away from you” can constitute an action against which there is no legal remedy, even though the person making the threat has no authority to enter the home and the homeowner is perfectly aware of it, and is (in real time) being affirmed in that by his lawyer. So, effectively, threatening kidnapping in order to be given an open door to home invasion, is OK.

1. L-family in Arizona moved into a house before it was fully completed.
2. County officials had signed off on it to be suitable for habitation.
3. Jan 7 the county CPS received anonymous tip that kids were subject to neglect: unsafe living conditions such as exposed wiring.
4. CPS leaves business card at residence Jan 10.
5. Jan 11, CPS and parents make an appointment in March for home viewing.
6. Family joins HSLDA. That org requests full list of allegation in anonymous complaint. CPS refuses.
7. Family retracts the appointment.
8. Mar 9, two CPS officers stop by house, with a county deputy and a volunteer “posse” member in uniform, and demand to see kids and enter house.
9. L parents refuse to grant entry.
10. CPS threatens “we have to take your kids away for up to 72 hours” if we can’t get in.
11. L’s get their lawyer on phone, but CPS won’t talk to him, they refer him to assistant DA.
12. Deputy calls for assistance, 2 more deputies, and for advice from sarge on phone. Eventually, sarge tells deputy that they have no exigent circumstances for basis to search home, and need a search warrant to enter over parents' objections.
13. CPS gets the assistant DA on phone, who talks to L-parents’ lawyer, and tells them they would take temporary custody of kids if not allowed to enter.
14. L-parents, in fear of arrest and having the kids taken away regardless of their resistance, give in and permit CPS to enter.
15. Within 10 minutes, CPS determines that the allegations were groundless and complaint will be closed.
16. L-parents sue CPS and sheriff officials for unreasonable entry.
17. Officials claim qualified immunity: they were just carrying out their official duties.
18. District judge denies deputies’ motion for summary judgment to dismiss: under the facts claimed, there is sufficient basis to try the case.
19. The infamous 9th Circuit overturns district judge, grants motion to dismiss the suit: Deputies were justified in their coercive entry because they had reason to believe probable cause existed. As a result, the entry is not considered “coercion” as far as the law goes.

My thesis comes in 3 parts. First, it is obvious that at least with respect to the manner this whole thing was carried out, the CPS officers should be fired for not putting the welfare of the children above their pissy little egos. You won’t be surprised that both CPS officials are women. Women may make great employees for handling kids, but I am not the first person to notice that they do sometimes seem to act like little napoleons when they have force of arms behind them. In addition to being fired, these CPS officers should be liable for civil claims, because their behavior did not comply with law and _probably_ did not comply with county policy. They had no business threatening to take the kids away without exigent circumstances, which they didn’t have. They were FLAT 100% wrong in claiming that the 4th Amendment doesn’t apply to them.

Secondly, the deputies (who also are being sued) are idjits and jackasses for hiding behind the stupidity of the CPS women. The deputies are claiming that it seemed “viable” that CPS should threaten to take the kids away, and this meant that the deputies’ telling the family to cave in and let them in was not something a reasonable officer should have known was out of bounds. Somehow, even though the CPS people didn’t even give lip service to (a) describing the information they had that presented probable cause, or (b) explaining why they didn’t have to follow the 4th Amendment, to the deputies these lapses meant the deputies could ignore those minor defects as well.

Thirdly, the 9th Circuit has finally gone too far, and positive measures should be taken to get rid of at least half of them, more likely the bulk of them. They are simply out of control. In this case, they DISMISSED the case, claiming a reasonable officer would “not have known that consent was not voluntary” when the deputy withdrew his “initial threat to enter the Ls' home without a warrant.” OK, the deputy initially (feeling his oats pretty well, with his weapon on hip) told the family the officials would enter without a warrant. Later on in the 40 minute debate he said that they could get a warrant, implicitly indicating that the sheriffs would not force entry without a warrant. However, at no time did he volunteer that his sergeant said there was no exigent circumstance providing a basis for entry without warrant, and the CPS officers continued unrelentingly demanding entry “or else we’ll take the kids away.” The continued presence of (by that time 5) deputies who persisted in backing up the CPS officers claims without one word of qualification is clear coercion. But even if for somebody the matter of fact is in doubt, THAT’s what trials are for – deciding the facts. The 9th’s decision to settle the case in absence of a determination of the facts about the threats is just WRONG law. And the 9th's own wording tells against them: the deputies " had reason to believe probable cause existed" is also wrong: either "probable cause" exists, or they don't have "reason to believe" that threatening to take the kids away is OK. They were already told by their sergeant that they didn't have exigent circumstances for entry without a warrant.

It is possible that the L’s didn’t react with the best possible strategy, but damn it they didn’t just barricade the doors, they let CPS see the kids from the balcony, and they got their lawyer on the phone. It was CPS who refused to listen to the lawyer. The 9th Circuit is saying that effectively there is no remedy for this: the deputies didn’t ought to have known better, (that entry was coercive), because there was a prior case that determined the “If that threat had remained unabated, ... consent could properly be set aside as involuntary” and they presume that the officers couldn’t know that the threat had remained unabated. WELL, what do you know, we can’t take the time to try the facts and find out whether the threat really had been abated, now can we? Oh, no, the 9th has to make sure that families have no recourse against the intrusions of the state into every facet of their lives, and threats of kidnappings are OK by state officials.

Why do I get the sense that if the deputies had been pursuing an illegal alien or drug dealer and made the same threats, the evidence observed upon home entry would be thrown out and the charges would be dropped by the same court? Hmmm? Do we use the law to PROTECT criminals and to INVADE law-abiding citizens?

I don’t send out letters to my congressmen and senators nearly often enough, but I will on this one. The judges need to be given a sharp lesson, and being made to answer for this is just the right step. I used to think simply being in error was not grounds for a judge being impeached, but this is too much. It’s not just that they are wrong, it’s the egregious way they concluded the matter, and their manipulation of law to provide no recourse to citizens when those with police powers are clearly outside their authority.

Comments (31)

In the past I have tended to give police and law officials the benefit of the doubt in their using police powers to make arrest and such. I think I am going to have to retract that, or at least put up a huge caveat. And I now think that maybe bad reasoning, and bad perception of reality as expressed in legal decisions, is a fully satisfactory basis for removing judges from the bench. The 9th Circuit needs to have several judges removed from its ranks, and replaced with people who have a connection with reality.

Before you crucify the 9th circuit, bear in mind that this situation was created by the Supreme Court which ruled that prosecutors have absolute civil immunity for anything they do in their capacity as a lawyer in court. For example, if they knowingly introduce a witness who tells them "I intend to lie my ass off and get this man convicted so I can reduce my sentence," you cannot sue them for that even if it is shown on video in court that the prosecutor knew he or she was introducing pure perjury. Withholding evidence? Same thing. Literally, nothing. And then you have to go pleading like a f#$%ing serf to another prosecutor to turn on them, which is sort of like going to one mafioso and pleading your case, only mafiosi are more likely to get enraged by equivalent utterly dishonorable conduct and do something about it.

Law and order conservatives are now reaping what they have sewn. This is the consequence of creating a "pro-cop" culture where cops and other law men are a class of their own. You might want to ask yourself why it is that at the time of our founding

1) Cops and other officials had no immunity.
2) They had to take out insurance policies or bonds because they were civilly liable for damage they did in the course of their duties.
3) They could be arrested by the citizenry or private security (such as the Pinkertons)
4) If they went off the reservation and broke the law, they could be resisted just like a violent criminal (this CPS official could be escorted off the property with a shotgun and any cop who responded to their defense would be regarded as a conspirator to commit violence).

Actually, IIRC, HSLDA won a case (I believe not under the 9th circuit) a few years ago at the federal level that said that unless there is an emergency CPS _does_ have to have a warrant. So this does seem to be a problem with the 9th circuit.

I was with you up to No. 14. They consented to entry. If you want to preserve a claim, you need to withhold consent to enter - at least so long as the cops don't have a warrant.

Those parents should not have to have endured that conduct by CPS. They probably were trying to do the right thing for their kids in a very stressful situation. I might have done the same thing.

The remedy a court could have provided is money damages and an injunction. Would that have made it better? Better than nothing, maybe. I just can't feel this would mean justice was done. CPS in AZ needs to be fixed. And it hasn't been, despite some (perhaps) incremental improvement, for at least 30 years. That's what's wrong with the world.

Actually, if the "consent" was coerced, they still have a claim. That understanding of the law is confirmed by the court's silly argument--namely, that the police could have reasonably failed to understand that a threat to take the children counts as coercion.

I agree with most of what you've written, but I must protest the bit about me not being surprised that the officers were women. I have noticed that women tend to act like little Napoleons with force behind them--but I find this fact to be true of people in general. The tendency to abuse power is universal.

Not in my experience. I've worked many jobs with a mix of male/female authorities and the difference is palpable.

At the risk of a McGrew-slap for threadjacking, I'll add my concurrence. It's true of people in general that they cry when they're sad, but if anyone hasn't noticed a real-world difference between men and women on this, he needs to pay attention more.

R.C., you are right up to a point. There certainly are plenty of examples of male law enforcers being overbearing and autocratic. It's not cut and dried all on one side. I think, though, that the anecdotal evidence is beginning to point in the direction of a stronger trend: there are enough women in those positions seem particularly prone to a sort of typical exercise of dictatorial behavior coming out. I admit I can't prove it with statistics, so I don't hold it forth as certain or provable. But it sure isn't surprising.

Billy, the whole 9th circuit case rests on whether coercion remained in place even though the deputies stopped saying "we can enter without a warrant". If coercion remained in force, it was coercive entry, it doesn't matter that the L's opened the door.

Sage, you'll get no argument from me. Power corrupts both men and women, but it corrupts women in ways unique to their gender. There is a particular flavor of female bullying that I think Tony is correct to detect in this case. It has something to do with the obsessive concept that, dang it, you're going to do what I say because I say it. Mom instinct applied in the wrong place to people over whom one has no rightful maternal authority. In the eyes of the social workers, the L parents were guilty of lese majeste.

Tony, what I've seen HSLDA recommend in some other cases is that the homeowner say something like this: "The door is unlocked. I am not resisting and will not resist your coming in. However, I do not give you permission to enter. If you enter, you are entering without my consent." I wonder how that would have affected the dynamic here.

Tony - thanks for fixing the link and your kind response. I think I was able to find the 9th Circuit decision. This paragraph seems to be the heart of it. I've shortened the family name to L as you did.

Contrary to the L's contentions, this is not a case in which officers use a baseless threat of the loss of one’s children to obtain a result entirely unrelated to the children. Cf. Lynumn v. Illiniois, 372 U.S. 528, 534 (1963); United States v. Soriano, 361 F.3d 494, 510–11 (9th Cir. 2004) (Berzon, J., dissenting) (twice describing the police officer’s threats as “baseless”). Further, that this court held qualified immunity did not apply to a police officer and a social worker who entered to search the home of a homeowner who refused to consent to a search, Calabretta v. Floyd, 189 F.3d 808, 811, 817 (9th Cir. 2009), says little as to whether the MCSO Officers’ conduct in this case was proscribed by the Fourth amendment. See Saucier, 533 U.S. at 202 (“[T]he relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.”).

My initial response is: I don't get it. My next response is that it's kind of hard to believe the deputies think that CPS can just seize kids. But then, they may have thought they could just enter a home without a warrant (at least they called to ask for advice on that, though).

Could the cops have used a baseless threat related to the kids in a matter that did relate to the kids (i.e. entirely related)?

The decision says just what you said to me. I still have to wonder if they had refused if there would have been a different result. That's entirely speculative given that the Court didn't choose that issue and went straight to qualified immunity.

All I remember about qualified immunity is that it is difficult hurdle to overcome. Might be the kind of case the Supreme Court would not be eager to take up.

In total, let's just say I'm not a fan of this decision. I don't think it advances clarity in the law, which is part of the problem, isn't it?

Billy, you're right - it is odd, from many angles. At the absolute worst, the 9th should have said "we aren't dismissing via summary judgment, you have to take your chances at trial to determine whether coercion existed - i.e. whether to a reasonable cop it was clear that threatening to take the kids away with no exigent circumstances to enter the house was lawful." My guess is that they knew damn well there is no jury in the state that would find in favor of the deputies, so they didn't like the option of sending it to trial.

This decision just smells, smells, smells rotten. The language the 9th uses is twisted: "_reason_to_believe probable cause existed" isn't like any standard I've ever heard of. Probable cause either exists or it doesn't, "reason to believe" it exists is a double-down on subjective pretense, for inventing your own reality. The notion that there wasn't coercion in the legal sense is based on a weird dichotomy between the deputies and the CPS officers, because the deputies knew damn well they didn't have probable cause to enter the house (their sergeant said so), but they somehow didn't think that had a bearing on CPS for some strange reason. The best theory I can imagine of what the deputies were thinking is that the CPS people were subject to a different standard of law. The problem, though, is that CPS was claiming that the 4th Amendment doesn't apply to them, and THAT is just a wrong standard altogether. I don't think any court in the land should give the deputies a pass for thinking the CPS were possibly right when they claimed a right to ignore the 4th Amendment.

The entry wasn't voluntary by any rational meaning, and the fact that the 9th found a quasi-legal way to call it voluntary just means that the 9th is abusing law to defeat reality. THEY SHOULD BE KICKED OUT.

Mike, can you cite court cases from the SC for your comment? I thought that in all jurisdictions, the prosecutor (as are all attorneys admitted to the bar) is responsible to the court (in a manner which limits his duty to seek convictions), i.e. for not cooperating with known, direct perjury and other abuses of the legal system, and can be (at the least) found in contempt of court for doing so. If the SC has ever set this aside, it's news to me.

Bear in mind that prosecutors are still accountable to the criminal law. That is, they can technically be punished by the judge (such as holding them in contempt) or another prosecutor. What they have is absolute civil immunity. That means you can theoretically still get justice, but only if another government official allows it. Here's another reference.

Tony, I don't have time to read the opinion, but I wouldn't be at all surprised if the 9th is doing exactly that--acting like if CPS claims it isn't subject to the 4th amendment, the poor, dumb police officers are allowed to act as a personal army for CPS and can't be expected to know any better. Which would be a terrible precedent. What it would in essence say would be this: CPS may well be subject to the 4th amendment, but if CPS social workers _say_ to the police that they aren't, the police and the social workers can violate the 4th amendment in fact but not be held accountable for it. CPS can just get away with that bluff.

As far as I can see, that would gut the 4th amendment holding of Calabretta. What good does it do for the court to hold that the 4th amendment applies to CPS cases if the police and CPS can ignore it and get away with it?

My reaction to the paragraph Billy quotes from the opinion is, "Whaddaya mean, Calabretta says little as to whether the officers' conduct was proscribed?"

the poor, dumb police officers are allowed to act as a personal army for CPS and can't be expected to know any better.

Lydia, for the love of all that is holy, police officers are literally allowed to commit felonies and claim "herp derp, my bad" when called out on them. For example:

1. Cop shoots a dog that is fleeing or tied up at a distance from the officer in a residential neighborhood? It's unheard of for them to be charged with Unlawful Discharge of a Firearm. Despite the fact that the officer cannot possibly claim a self-defense motivation.

2. Cop breaks down your door because they misread the warrant and shoots up your living room? No charge.

3. Cop posing as a drug dealer, trying to sell drugs on your property and you treat him like a drug dealer? He can blow your head off and later claim "damn civilian should have known I was a narc." Isaac Singletary found that out the hard way.

4. Cop aims a firearm at your heart during the execution of a warrant for a non-violent felony and shoots you dead without you even resisting? Same thing.

5. Or how about one of my favorites: a pastor in Georgia was ministering to a woman who had drug problems. He gave her a lift to a convenience store and dropped her off. On the way out, three guys stormed the parking lot with guns, coming in his general direction and fled. As he backed up, one shot him several times. Turned out to be cops in plain clothes, unmarked vehicle who wanted the woman because her boyfriend was a small time drug dealer. Charges? Not on your life.

Mike, you are right, these are absolutely horrendous examples. Do you have evidence that the "no charges" handling is the by way of formal, express standard of law, or is rather the cops and prosecutors scratching each others' backs like good ol' boys do? That is, is it explicit, out-in-the-open policy by judges and lawmakers that these laws don't apply to police, or is it sub-rosa corruption?

Your "agitator" link does not establish the point you are making. In the Van de Kamp decision, the facts were that the prosecutor gave a criminal a free pass for testimony against another defendant. Nothing in the data suggests even remotely that the prosecutor actually knew the testimony elicited was in fact perjury. Unless you want to throw out plea-bargains for testimony ALTOGETHER as intrinsically wrong (and he should have known it was, even though it is used - and has been for many decades, since well before modern jurisprudence - as a standard tool), you cannot say the prosecutor engaged in wrongful prosecution on the mere evidence of granting a free pass and getting perjured testimony.

The Trial Warrior link has more stuff, but there remain holes in the picture you are painting. It links to this site:

which makes many of the same points, but THEN goes on to say that "absolute prosecutorial immunity" is actually constrained within some pretty careful boundaries. For example,

Recently, in Kalina v. Fletcher, 522 U.S. 118 (1997), a unanimous Supreme Court held that a prosecutor who perjured herself when certifying certain facts necessary to obtain an arrest warrant was not absolutely immune from suit.

Now, the court's rationale was narrower than I would like in this, but my main point is this: the word "absolute" is a modifier on the quality of the immunity, not a modifier on the EXTENT of activities covered. Within a certain restricted class of activities, the immunity is absolute, outside of those activities the immunity is not absolute. Like you Mike, I don't think the courts have erected the right protections, and it needs to be addressed. But the situation isn't totally 100% black as midnight in a cave.

Do you have evidence that the "no charges" handling is the by way of formal, express standard of law, or is rather the cops and prosecutors scratching each others' backs like good ol' boys do? That is, is it explicit, out-in-the-open policy by judges and lawmakers that these laws don't apply to police, or is it sub-rosa corruption?

Consider this, Tony. In a jurisdiction in which you have a duty to retreat before using self-defense force at all, why is a cop not charged with Unlawful Discharge of a Firearm for shooting a dog that is retreating from him? Under the law, there is no excuse. Cops cannot discharge a firearm to proactively kill a dog that might become a threat later, but that is openly retreating from them. That's both Unlawful Discharge and in some states, felony Animal Cruelty. If a healthy black lab is running from you in terror, and you chase it and kill it, there is no legal rationale vindicating you. Yet that is more or less precisely what PG County cops did to Cheye Calvo's dogs. If you search for "cop" and "puppycide" (the civil libertarian new nickname for the modern tendency to simply slaughter all dogs present at the scene), you'll find all sorts of examples of this. Many of them will make you sick.

The reason I use that as a good example of how deep the corruption is is that this behavior is often logically indefensible and legally indefensible. It is such a wild-eyed, extreme use of force in a way that poses a meaningful threat to private citizens' safety that it is something that any clear-thinking person would insist should be prosecuted. Yet, when the police review it they almost invariably say "it was justified" or "it met department training standards."

It doesn't surprise me that CPS gets away with this because government employees at this level frequently trip over themselves trying to protect their own. The clearest way you can tell that this is the case is that the judge admitted that the CPS agent had no legal authority to take the action threatened and then that caused someone to stop doing what they were lawfully permitted to do--yet the judge sided with the government. This is literally no different from when a criminal gives an order which is patently unlawful and it stops perfectly legal activity.

Now, the court's rationale was narrower than I would like in this, but my main point is this: the word "absolute" is a modifier on the quality of the immunity, not a modifier on the EXTENT of activities covered. Within a certain restricted class of activities, the immunity is absolute, outside of those activities the immunity is not absolute. Like you Mike, I don't think the courts have erected the right protections, and it needs to be addressed. But the situation isn't totally 100% black as midnight in a cave.

That's because the prosecutor apparently committed the crime herself. Now maybe it's a point of hyperbole to say that if a prosecutor literally knew a person intended to commit a felony in the court room that they would be immune, but under Brady vs. Maryland, a prosecutor must inform the defense of exculpatory evidence and the possibility that a witness has a motive to unlawfully harm the defense. However, failure to do that is still not a matter for which they can be sued and the Supreme Court just reaffirmed that in its Connick ruling where it reversed a jury award in a civil trial that was over that very matter. The reason the plaintiff targeted DA Connick's office was that under (I can't find the particular case's name) a 1976 ruling, individual prosecutors couldn't be sued for that sort of behavior. Serious, felonious conduct, perhaps, but nothing like "negligence." Since private citizens cannot sue them for negligence, nor can they bring private criminal charges, their options for getting into discovery to find out the truth are few and far between if any.

Unless you want to throw out plea-bargains for testimony ALTOGETHER as intrinsically wrong (and he should have known it was, even though it is used - and has been for many decades, since well before modern jurisprudence - as a standard tool), you cannot say the prosecutor engaged in wrongful prosecution on the mere evidence of granting a free pass and getting perjured testimony.

I would because I am a firm believer that perjury must be not only avoided, but ruthlessly punished. In capital trials, the punishment should be execution for perjury, regardless of the effect it has on the defendant or whether the defendant is actually guilty.

Almost every one of these judicial standards that are decided in court rooms are subject to correction and regulation by law, if Congress (or state legislature) simply decides to act. In cases where the judges are getting it WRONG consistently, there is very good room to ask your legislator to initiate a bill to correct the mistake. Although I don't put much faith in the legislative good-will either, maybe we can feed in some professional jealousy: the judges are accruing to themselves powers that are arguably legislative.

1) Abolish qualified and absolute immunity. No government employee should ever be civilly or criminally immune for any action they undertake in the US. If a cop "makes a mistake" and bursts into the wrong house, guns blazing, the law should never make their department immune from litigation. This was the way it was at the time our country was founded, and why law enforcement generally was less abusive back then.

2) Tie all arrest authority to specific statutes with a statute that outlaws a general arrest authority. The Supreme Court has tended to take a view that when the legislature isn't specific, the police have a general arrest power. The legislatures need to turn this on its head and make it clear to the executive: we define your arrest power, not the courts.

3) Make all attempts to arrest or demand compliance that is factually outside the law (meaning it isn't actually legal, regardless of what the government agent believes in "good faith") a criminal offense for which reasonable force can be used to resist, up to taking the officer or CPS agent's life if they use high levels of force. Back when my dad was a street cop, most states did this. In fact, he's told me that most of the older, retired cops he knows lament that this is no longer the case because they feel that it is a critical check on the young hot heads.

4) Restore the right of citizen's arrest and do so fully in accordance with #3.

5) Scale back municipal police forces in favor of sheriffs' departments and a general restoration of the posse comitatus.

3) Make all attempts to arrest or demand compliance that is factually outside the law (meaning it isn't actually legal, regardless of what the government agent believes in "good faith") a criminal offense for which reasonable force can be used to resist, up to taking the officer or CPS agent's life if they use high levels of force.

I absolutely disagree with this. If a policeman makes a mistake as to what the evidence in front of his face implies, you can shoot him instead of submitting to arrest? That's bizarre, bordering on insane, Mike. The whole point of the courts is for men to sort out the TRUTH as well as the just resolution of the truth at leisure. The policemen aren't supposed to know how the court will conclude a case before he arrests you. An honest mistake about facts is a just cause for a mistaken arrest.

Back when my dad was a street cop, most states did this.

Sorry, but I doubt this strenously, and will refuse to begin to credit it until you produce some evidence. I think it has always been state by state how far a person can refuse to cooperate, and I doubt that it has EVER been the case that the law (in any state) explicitly upheld your right to, say, shoot a cop who is trying to arrest you when he has a boat-load of circumstantial evidence that points at you, but you happen to be innocent anyway.

Tony, I said if the officer's claimed arrest powers are factually outside the law, not if the officer mistakes the evidence in front of him. That means if the officer is claiming he can arrest you for an offense which doesn't even exist in the codified law of the Commonwealth. Arlington PD, for example, is infamous for cheerfully disregarding the will of the legislature on gun rights by arresting people for open-carrying.

Yes, I think if an Arlington PD officer pulls a gun on you in VA and refuses to listen to reason, you should have a restored right to shoot him dead as you would a neighbor who runs outside with a gun and tries to detain you at gun point for open-carrying(in VA, that action would be classified as a criminal act which would make you fear for your life).

And yes, back until about 30-40 years ago, if a cop whipped out a gun and put in someone's face for an action that was perfectly legal in their state, the law had no mercy on them. There is a big difference between a good faith exception for the cop thinking you committed an actual crime and a good faith exception for the cop when the arrest is for a "crime" that doesn't even exist on the books.

If you can support giving them protection for the latter, you are implicitly saying that you believe ignorance of the law should be an excuse for professional law enforcement when it isn't for private citizens with no formal training in the law.

Tony, I said if the officer's claimed arrest powers are factually outside the law, not if the officer mistakes the evidence in front of him.

Sorry, my mistake. I misunderstood your point, I apologize.

If you can support giving them protection for the latter, you are implicitly saying that you believe ignorance of the law should be an excuse for professional law enforcement when it isn't for private citizens with no formal training in the law.

I don't support that. Mike, you are right, when the cop is operating in such a way that what he is doing is illegal for a civilian to do, and is also not covered by any valid grant of authority under law for police activity, then he is just plain breaking the law and should be liable both for criminal and civil penalties. As, for example, the CPS and deputies in this case here.

If by facts you mean the officer thought he saw evidence of a crime that has been defined by the legislature, then I agree. If you mean the officer thinks he sees a crime which is actually not a crime according to the state law, then I disagree. Many of the abuses that happen in court would never happen if CPS and the police operated once more under a regime where taking action against someone for engaging in lawful behavior that cannot be confused for an actual crime would be considered a felonious use of force.

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